Obesity remains a serious health problem and it is no secret that many people want to lose weight. Behavioral economists typically argue that “nudges” help individuals with various decisionmaking flaws to live longer, healthier, and better lives. In an article in the new issue of Regulation, Michael L. Marlow discusses how nudging by government differs from nudging by markets, and explains why market nudging is the more promising avenue for helping citizens to lose weight.

Two long wars, chronic deficits, the financial crisis, the costly drug war, the growth of executive power under Presidents Bush and Obama, and the revelations about NSA abuses, have given rise to a growing libertarian movement in our country – with a greater focus on individual liberty and less government power. David Boaz’s newly released The Libertarian Mind is a comprehensive guide to the history, philosophy, and growth of the libertarian movement, with incisive analyses of today’s most pressing issues and policies.

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Tag: Supreme Court

In 2009, Irving, Texas, was forced to redraw its city council districts after a federal court held that its multi-member-district system discriminated against Hispanic voters in violation of Section 2 of the Voting Rights Act, which protects the rights of racial and linguistic minorities to elect their preferred candidates (whatever that means). Following complex Section 2 precedent, the court employed the requisite “citizen of voting age population” (CVAP) standard and found that, in the absence of at-large elections, Irving’s Hispanic voters could have constituted their own majority district.

When Irving finished redrawing its map, the total population count of residents inhabiting each district was roughly equal and one was indeed majority-Hispanic. Because the redistricting process used total population instead of CVAP, however, that particular district had a significant concentration of non-citizen residents. A relatively small constituency of eligible voters in that district thus had their votes so “over-weighted” that their voting power was effectively double that of voters in the other districts (which, again, were similarly populated but had twice the number of eligible voters).

Irving citizens sued the city, alleging violations of their voting rights as guaranteed by the one-person, one-vote (OPOV) principle under the Fourteenth Amendment’s Equal Protection Clause. The U.S. Court of Appeals for the Fifth Circuit affirmed a dismissal of these claims, following circuit precedent holding that the decision to use either total population or CVAP when applying OPOV should be left to elected officials’ discretion. Astonishingly, even though courts are required to use CVAP when examining Section 2 racial-discrimination claims—see above—the Fifth Circuit completely ignored the CVAP disparities in the redrawn districting plan.

Cato has now filed an amicus brief supporting the Irving citizens’ request that the Supreme Court take the case. We havefrequentlyargued that courts confront a “bloody crossroads” when trying to reconcile the modern Voting Rights Act with the Constitution. Here, not only has the Fifth Circuit illustrated the tension between Section 2 and the Fourteenth Amendment, but similar rulings in the Fourth and Ninth Circuits—either deferring to the political branches or precluding the use of CVAP altogether—have heightened the conflict.

The Fourteenth Amendment and OPOV are emphatically within the province of the judiciary to enforce. We thus urge the Court to review the intolerable contradiction that arises when Section 2, intended to enforce the guarantees of the Fourteenth Amendment, is used to violate OPOV.

While once a functional proxy for equalizing the voting strength of eligible voters, the total population metric has become imprecise and outmoded. In areas with high concentrations of non-citizen, non-voter residents, it can conceal substantive demographic differences that undermine the principle of voter equality. CVAP, by contrast, is the most precise measure of the substantive electoral equality and the proper means for reconciling the conflict between Section 2 and the Fourteenth Amendment.

The name of the case is Lepak v. City of Irving. The city and certain activist groups that have intervened in the case will now file their opposition to the petition for review, and then the Supreme Court will decide this spring whether to take the case and set it for argument in the fall.

One of the biggest dangers of not providing adequate constitutional protections for private property is that public officials can misuse their power to take property for private gains. Government actors, after all, have an incentive to act in a way that maximizes political gains and minimizes costs, so without adequate protection from the courts, they can be expected to use eminent to take private property for political (or even personal) benefit.

In 2005, in the now infamous case of Kelo v. City of New London, the Supreme Court unfortunately eroded the protections of the “public use” portion of the Fifth Amendment’s Takings Clause — “nor shall private property be taken for public use without just compensation” — by ruling that the potential for increased tax revenue from a large corporation can count as a “public use.” Suzette Kelo’s house was thus taken and given to Pfizer (which ended up not doing anything with the land).

It’s hard to imagine that government abuse of the Takings Clause could get any worse than that, but one such unfortunate case has arisen in Guam — which, as a U.S. territory, is covered by the Constitution. Artemio Ilagan owns and operates an apartment building in Agana, Guam. His neighbors, Engracia and Felix Ungacta, own an adjoining, residential lot that once lacked access to a road. Unfortunately for Mr. Ilagan, Mr. Ungacta was also the mayor of Agana when the city took a parking lot from Mr. Ilagan and gave it to Mayor Ungacta.

When challenged, the city claimed that the taking was done in accordance with a post-World War II “economic development” plan — the “Agana Plan” — that was enacted to reconfigure irregular lot lines in Agana. At the time of the taking (1981), the Agana Plan had not been used for seven years and, during the years it was used, was never used to take any lots. Moreover, the Plan has not been used in the 30 years since the taking of Mr. Ilagan’s lot.

The Guam trial court held the taking unconstitutional, but Guam’s Supreme Court reversed the holding by purportedly applying Kelo’s standard of judicial deference. Mr. Ilagan is now petitioning the U.S. Supreme Court to review his case, asking the Court whether it wants to allow other courts to use Kelo to cross the final bridge in eviscerating the Takings Clause — the blatantly pretextual taking of private property to give it to a public official.

Cato has joined the National Federation of Independent Business, 10 other organizations, and a group of constitutional and property law professors, on an amicus brief arguing that the Court should take the case in order to clarify, if not overrule, the broad language of Kelo. Kelo itself says that the government may not “take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.”

In Kelo, taking the property as part of an “economic development plan” was held to constitute a public purpose. Here, however, the “economic development plan,” was clearly a pretext to take property to benefit a known private party who just “happened” to also be the mayor. We point out that, despite the Court’s distaste with “pretextual takings” articulated in Kelo, courts across the country are split over what a pretextual taking is. Some courts have even ruled out the possibility of their existence. Yet, from the misuse of “blight” condemnations—a designation often used to tear down old neighborhoods for the purposes of gentrification—to situations like Mr. Ilagan’s, pretextual takings occur far too often.

The egregious case of Ilagan v. Ungacta is a perfect vehicle for the Court to clarify the concept of a pretextual taking and to bring some semblance of coherence back to a vital constitutional provision. More on our brief from Ilya Somin at the Volokh Conspiracy.

The flagship publication of the DC Bar Association is the Washington Lawyer. The December issue reviews a new book by legal journalist Jeffrey Toobin, The Oath. Here’s an excerpt from the magazine’s regular reviewer, Ronald Goldfarb:

What is clear is Toobin’s ability to tell intriguing stories, and also to present sound overviews of important cases and the jurisprudence they represent without dumbing down the legal analysis. An example is his story behind the notorious District of Columbia v. Heller case dealing with gun control. I know the inside story from the man behind the case (not Dick Heller, the selected plaintiff, but Robert Levy, the chair of the board of directors of Cato Institute who dreamed up the case and managed its route to new constitutional law), and Toobin’s story rings true. Toobin’s characterization of the politics, history, and constitutional law surrounding this very important decision is smart and informative. His conclusion that Justice Antonin Scalia’s majority opinion was “an improvisation designed to reach a policy goal” is ironic. Scalia argues that the Constitution is “dead,” not a living document, and Toobin shows how perverted Scalia’s theory is by using the justice’s own words and reasoning in Heller. Rather than an example of his repeated preaching that the Constitution is “textualist” and “originalist,” Scalia’s opinion demonstrates that the Constitution is what the justices say it is: always dressed up in chameleonic jurisprudence to suit the justices’ predilections and to reach their political conclusions. (Bush v. Gore is a classic example.)

There you have it: A sound overview without dumbing anything down. Cato chairman Bob Levy “dreamed up” an idea about some constitutional right to keep and bear arms. Then Justice Scalia said, “My predilections match your dream!” Scalia then cobbled together some nice-sounding arguments and now America has to live with this darn Heller precedent.

Mr. Toobin, the book author, makes the claim that Scalia was once a “conservative intellectual” but is now a “right wing crank.” The book reviewer, Mr. Goldfarb, then informs us that Toobin’s treatment of the justices is “quite balanced.” (I know you don’t believe me—so go read it yourself.)

For a quick blog post, suffice it to say that Scalia was not alone on this. Four other justices agreed with his conclusion in Heller. I would also note that distinguished liberal scholars—Sanford Levinson, William Van Alstyne, and Nat Hentoff, to name a few—hold similar views of the Second Amendment.

For more on the Heller case and the Second Amendment, go here and here.

For another look at the worldview of establishment liberalism, go here.

Property owners enjoyed a qualified win in the Supreme Court this morning when a unanimous Court (Justice Kagan recused) decided that “government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.” The case, Arkansas Game & Fish Commission v. United States, was brought by AGFC, which owns and operates 23,000 acres of land as a wildlife refuge and recreational preserve. Clearwater Dam, a federal flood control project, lies 115 miles upstream. Water is released from the dam in quantities governed by a pre-approved “management plan” that considers agricultural, recreational, and other effects downstream.

Between 1993 and 2000, the federal government released more water than authorized under the plan. AGFC repeatedly objected that these excess releases flooded the preserve during its growing season, which significantly damaged and eventually decimated tree populations. In 2001, the government acknowledged the havoc its flooding had wreaked on AGFC’s land and ceased plan deviations. By then, however, the preserve and its trees were severely damaged, requiring costly reclamation measures, so AGFC sued the government, claiming damages under the Fifth Amendment’s Takings Clause. Today, the Supreme Court agreed, reversing the U.S. Court of Appeals for the Federal Circuit.

Earlier, Cato had joined the Pacific Legal Foundation on an amicus brief urging the Supreme Court to take the case, which it did. We then joined the Pacific Legal Foundation and the Atlantic Legal Foundation with a second amicus brief urging the Court to uphold the Fifth Amendment rights of property owners whose land is destroyed by the federal government.

As is so often the case with the Court’s property rights jurisprudence, however, today’s decision was not an unqualified win for property owners. Because there is “no magic formula” for determining whether a particular government action constitutes a taking of property, Justice Ruth Bader Ginsburg wrote for the Court, “the Court has recognized few invariable rules in this area.” It has drawn some bright lines: regulations that constitute a permanent physical occupation of property or that require an owner to sacrifice all economically beneficial uses of his property will be ruled a taking. But in other cases, the Court will weigh several “factors.” Here, for example, in deciding whether the temporary flooding was a taking and hence compensable under the Takings Clause, the Court weighed the duration of the flooding, the degree to which the flooding was an intended or foreseeable result of the government’s action, the character of the land at issue, the severity of the interference, and—drawing from its infamously opaque Penn Central opinion—the owner’s “reasonable investment-backed expectations.”

Thus, the case is not over yet. Because the government had challenged several of the trial court’s fact-findings, including those relating to causation, forseeability, substantiality, and the amount of damages, the Court remanded the case for further proceedings. Still, the basic principle was settled: temporary government-induced flooding enjoys no automatic exemption from Takings Clause inspection. And that’s a win.

Statutes of limitations exist for good reason: Over time, evidence can be corrupted or disappear, memories fade, and companies dispose of records. Moreover, people want to get on with their lives and not have legal battles from their past come up unexpectedly. Plaintiffs thus have a responsibility to bring charges within a reasonable time of injury so that the justice system can operate efficiently and effectively – and that’s doubly so when the would-be plaintiff is the government, with all its tools for investigation and enforcement.

There’s a general federal statute of limitations, therefore, 28 U.S.C. § 2462, which protects liberty by prohibiting government actions “for the enforcement of any civil fine, penalty, or forfeiture … unless commenced within five years from the date when the claim first accrued.” In April 2008, however, the Securities & Exchange Commission sued the managers of Gabelli Funds LLC, a mutual fund, for civil penalties relating to conduct that ceased in August 2002, more than five years earlier. The SEC alleged that Gabelli Funds defrauded investors by failing to disclose that the fund was allowing a favored investor to engage in “market timing” – buying and selling mutual fund shares in a manner designed to exploit short-term price swings.

The U.S. Court of Appeals for the Second Circuit ruled that the SEC’s claim was nevertheless valid because courts should read into § 2462 an implicit “discovery rule” – a common exception to statutes of limitations that prevents fraud-based claims from accruing (“stops the clock” on the limitations period) until the plaintiff discovers, or with reasonable diligence should have discovered, the basis for the claim. Because of the allegedly fraudulent nature of the defendants’ actions, the court found that the government’s claim accrued not when their conduct ceased but a year later, when the violation was actually discovered.

The Supreme Court decided to review the case, and Cato filed an amicus brief supporting the defendants. We make three points:

First, Congress could not have intended a discovery rule to be implicit here because at the time the operative language in § 2462 was enacted, case law explicitly rejected a discovery rule – and since then Congress enacted numerous statutes with explicit discovery rules that would be superfluous if a discovery rule had already existed implicitly.

Second, reading a discovery rule into § 2462 violates the principle of separation of powers by judicially changing the statute’s meaning: When judges rewrite laws, those laws fail to meet the constitutional requirement of bicameralism and presentment (“how a bill becomes a law”).

Third, even if courts could alter rather than merely interpret the meaning of statutes, there’s no basis for creating a discovery rule for government enforcement actions. Government agencies with broad investigatory powers – indeed, whose purpose is to monitor regulatory compliance – don’t face the same difficulty as private plaintiffs in identifying causes of action which give rise to the discovery rule. Adding a discovery rule to § 2462 would create an indefinite threat of government lawsuits and invite agencies to review decades of past conduct of selectively disfavored companies and individuals – inevitably chilling innocent and valuable economic activity.

To preserve individual liberty in the face of an ever-burgeoning regulatory state and ensure constitutional separation of powers, we urge the Court to reverse the Second Circuit’s decision and hold that no discovery rule applies in Gabelli v. SEC. The case will be argued at the Supreme Court on January 8.

The National Association of Optometrists & Opticians represents eyewear manufacturers and distributors in California, where state officials have been myopic with respect to business regulation.

Under California’s Business and Professions Code, state-licensed optometrists and ophthalmologists are allowed to conduct eye exams and sell glasses at their place of business, while commercial retailers—such as the national eyewear chains represented by the NAOO—are barred from furnishing onsite optometry services. Since consumers have a strong preference for “one stop shopping”—buying their glasses at the same place where they have their eye exams—California’s law gives instate retailers a crucial competitive advantage. Businesses that cannot co-locate their services have quickly vanished from the market.

The NAOO thus sued California officials for discriminating against out-of-state retailers in violation of the “dormant” Commerce Clause, which prohibits states from imposing unjustifiable burdens on interstate commerce. The district court ruled in the group’s favor, concluding that the relevant statutes have a widespread and unjustified discriminatory effect that can’t be reconciled with Supreme Court precedent. The U.S. Court of Appeals for the Ninth Circuit reversed, however, holding that state-licensed optometrists and out-of-state retailers aren’t similarly situated competitors—even though they compete for the same customers in the same market.

On the case’s second round in the Ninth Circuit, the court scrutinized the California law under a more lenient balancing test and again upheld the ban on co-location by out-of-staters. Cato now joins the Opticians Association of America and five individual optometrists on an amicus brief urging the Supreme Court to take the case (supporting a petition for review filed by former solicitor general Paul Clement).

We argue that California’s laws are unconstitutional because their true purpose—as revealed through legislative history and the scheme’s hollow public health rationale—was merely to protect in-state business interests. California’s protectionist regime also has an adverse impact on poor and minority consumers, who confront increased costs and diminished access to eye care while also being disproportionately afflicted with visual impairments.

Not only does the Ninth Circuit’s ruling stifle competition, restrict consumer choice, and increase prices, it also encourages state and local governments to evade scrutiny of discriminatory regulations by relying on superficial distinctions between in- and out-of-state businesses that warp the meaning of “similarly situated competitors.” The Supreme Court should intervene to prevent any further erosion of its dormant Commerce Clause jurisprudence and uphold the anti-protectionism principles envisioned by the Founders when they abandoned the Articles of Confederation in favor of the Constitution.

The Court will decide whether to take up National Association of Optometrists & Opticians v. Harris later this year or in early 2013.

That’s the title of an op-ed I had in the Daily Caller last week. Here’s how it begins:

Four months have passed since Chief Justice John Roberts made Obamacare’s individual mandate a tax and thereby let stand one of the two laws most responsible for our sluggish economy (the other being the Dodd-Frank financial “reform”). I was in the courtroom that fateful June day and my emotions quickly cycled through shock, denial, anger, and later depression — why had I dedicated myself to the law when the most important case of my lifetime turned out in this illegitimate way? — before settling into the “bargaining” stage of grieving.

I’m still there. I just cannot get over that blow against not only sound jurisprudence and the rule of law — bad enough — but against the legitimacy of our government altogether. By recognizing that Obamacare was unconstitutional but shying away from striking it down, John Roberts fundamentally shook my faith in our system of justice.

Now we will have an election to decide the ultimate fate of Obamacare. But this election will also be about who gets selected to serve on the Supreme Court. Should Republican presidents continue to nominate judicial conservatives who are enthralled with New Dealers’ mantra of judicial restraint, or should Republican presidents nominate constitutional conservatives who believe that it is not activism for judges to be engaged in enforcing the whole Constitution. All future nominees should be vetted not only for their views on the meaning of the Constitution, but for their willingness to enforce that meaning. For over two years, our nation was given a great lesson on constitutional law — that the enumerated powers are limits Congress cannot exceed. In June, the electorate was given a different lesson in judicial philosophy: Judicial restraint in enforcing those limits is no virtue. In November and beyond, we will see just how well those lessons were learned.